A party is permitted to introduce updated records as evidence upon the resumption of an administrative hearing if an opportunity to respond to such records is provided

A party is permitted to introduce updated records as evidence upon the resumption of an administrative hearing if an opportunity to respond to such records is provided

Coleman v Rhea, 2013 NY Slip Op 01783, Appellate Division, First Department

In resolving this Article 78 petition one of the issues considered by the Appellate Division was whether there was “substantial evidence” to support an administrative determination made after a hearing.

The petitioner, Wanda Coleman, claimed that her right to due process was violated when the hearing officer permitted the New York City Housing Authority [NYCHA] to submit an updated ledger into evidence when an administrative hearing was resumed.

The Appellate Division disagreed, explaining that Coleman was free to testify regarding the updated ledger and the hearing officer kept the hearing record open post-hearing to give Coleman a full opportunity to respond to the updated information.

Indeed, said the court, Coleman had availed herself of this opportunity by submitting documentary evidence. Further, the court ruled that the hearing officer had not violated NYCHA's relevant internal administrative procedures in so doing.

A second issue concerned a procedural matter.

The Appellate Division noted that Supreme Court had denied Coleman’s Article 78 petition seeking to annul NYCHA’s administrative determination. The Appellate Division, however, “unanimously reversed” Supreme Court’s ruling on the law and treated the petition as one transferred to it for a de novo review.

Coleman’s petition, said the court, raised an issue of substantial evidence, and thus, the proceeding should have been transferred to this Court pursuant to CPLR §7804(g). Accordingly, the Appellate Division considered the substantial evidence issue de novo and decided all issues presented as if the proceeding had been properly transferred to it by Supreme Court in the first instance.

The Appellate Division then confirmed NYCHA’s administrative determination as supported by substantial evidence and denied Coleman’s petition, dismissing the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01783.htm

If a past practice involving a mandatory subject of negotiation is established the Taylor Law bars the employer from unilaterally discontinuing that practice

If a past practice involving a mandatory subject of negotiation is established the Taylor Law bars the employer from unilaterally discontinuing that practice

Town of Islip v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 01562, Appellate Division, Second Department

The Public Employment Relations Board [PERB] affirmed a decision of its administrative law judge that found, after a hearing, that an improper practice charge filed by Local 237, International Brotherhood of Teamsters and United Public Service Employees Union, violated Civil Service Law §209-a(1)(d).

The genesis of Local 237 filing an improper practice charge with PERB was the Town’s unilaterally discontinued an alleged past practice involving the use of Town vehicles by certain unit members to commute. PERB directed the Town to reinstate the practice and to "make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest at the maximum legal rate."

The Town had contended that the practice violated its Code of Ethics and Financial Disclosure Law which, in pertinent part, provided that "[n]o officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business. In addition, the Town had a written policy concerning the use of Town vehicles.

According to the decision “For at least 15 years prior to 2007, the policy was frequently ignored with respect to assignments of Town vehicles for permanent use. In late 2007, the Town and a union representing certain Town employees were negotiating two new collective bargaining agreements. In the course of negotiations the Town proposed a provision concerning employee use of Town vehicles, but then withdrew its proposal, contending that the permanent use of Town-owned vehicles was not a mandatory subject of collective bargaining.

When negotiations were at an impasse in early 2008 on various issues, the Town Board passed a resolution limiting the assignment of "take-home" vehicles. As a result of this action approximately 45 unit members lost their assignments of Town vehicles for their permanent use.

The two unions then representing the affected employees filed an improper practice charge with the PERB contending that the long-extant practice of assigning Town vehicles for permanent use to persons who did not qualify for them under the Town's written policy had given rise to a "past practice" as an economic benefit. Thus, argued the unions, “Any change in that practice … was a 'mandatory' subject of collective bargaining, and the Town's change in policy constituted an improper employment practice."

A PERB administrative law judge determined that the longstanding practice of assigning Town vehicles to employees for permanent use constituted a past practice regarding the terms and conditions of employment, notwithstanding that those permanent assignments were in conflict with the Town's written policy. The Town was directed to restore the vehicles to the employees and compensate the employees for the period during which they were without the vehicles. PERB, in its final determination, affirmed the administrative law judge's decision.

The Appellate Division sustained PERB’s decision, explaining that under the Taylor Law a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding the "terms and conditions of employment" and the failure to do so constitutes an improper employment practice.

Further, said the court, pursuant to this duty to negotiate, where a past practice between a public employer and its current employees is established involving a mandatory subject of negotiation, the Taylor Law bars the employer from discontinuing that practice without prior negotiation, citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.

As PERB's determination was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," the Appellate Division said that it must determine whether PERB's decision was supported by "substantial evidence." In addition, in light of certain of the Town's contentions,* the Court said that it must also inquire whether the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The Appellate Division’s conclusions:

1. The PERB's determination was not affected by an error of law, as the Town could be required to collectively bargain over the issue. The court explained that the Town government was responsible for administering the Ethics Code and for managing its vehicle fleet. Yet, as substantial evidence in the record established, the Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to contend later that the Code allowed it to act unilaterally in taking the vehicles away from the employees who had been permanently provided with them. PERB, said the court, was not required to give more effect to the Town Ethics Code than the Town itself gave to it.

2. For similar reasons, the Appellate Division ruled that it cannot be said as a matter of law that it is unreasonable for employees to rely on the administering authority's interpretation and implementation of its policy and Ethics Code. Consequently, the PERB's determination was not affected by an error of law, was not arbitrary and capricious, did not constitute an abuse of discretion.

In the words of the court, “The evidence in the record supported the PERB's determination that the assignment of Town vehicles to the affected employees for permanent use was unequivocal and continued uninterrupted for a period of time which, under the circumstances, created a reasonable expectation among the affected unit employees that the practice would continue.

“The assignment of Town vehicles by Town officials to nonqualifying employees was done openly and without any indication to the employees that it was other than legitimate. The payroll office was notified to deduct a certain amount from the employees' paychecks to account for the value of the benefit. Moreover, the practice continued unabated for many years.

“Consequently, the Appellate Division ruled that PERB properly determined that the assignment of vehicles to the affected employees for permanent use constituted a past practice as to a term or condition of employment, and that the Town engaged in an improper practice by refusing to engage in collective bargaining as to a change to that term or condition.”

* The Town claimed that as its Ethics Code forbids the use of Town vehicles in violation of Town policy, the Town could not be forced to engage in collective bargaining over the issue. In addition, the Town argued that, as a matter of law, the employees could not have a reasonable expectation that the assignment of Town vehicles for permanent use would continue, because such an assignment of vehicles violated the Town Ethics Code. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01562.htm

Petition seeking to remove a public office from his or her position pursuant to Public Officers Law §36 must be served in accordance with the rules of the Appellate Division having jurisdiction

Petition seeking to remove a public office from his or her position pursuant to Public Officers Law §36 must be served in accordance with the rules of the Appellate Division having jurisdiction
Nielsen v Hafner, 2013 NY Slip Op 01555, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer, other than a justice of the peace, for misconduct, maladministration, malfeasance or malversation in office.

Any citizen resident in the jurisdiction, or the appropriate district attorney, may file a §36 applicationseeking the removal of such an officer with the Appellate Division in the appropriate judicial department. §36 provides that a copy of the application and the charges upon which the application will be made must be served on the officer at least 8 days prior to such filing.

Karen Nielsen initiated an action seeking a court order to remove Bruce Hafner from public office in Cold Spring Harbor, Town of Huntington, Suffolk County, pursuant to Public Officers Law §36 with the Appellate Division.

Nielsen also filed a petition pursuant to Article 78 of the Civil Practice Law and Rules with the Appellate Division seeking an order to compel Hafner to resign as Fire Commissioner of the Cold Spring Harbor Fire District.

Hafner asked the Appellate Division to dismiss Nielsen’s petition filed pursuant to Public Officers Law §36 on the ground that it was not properly served upon him. The court agreed and granted Hafner’s motion to the extent that it sought relief pursuant to Public Officers Law §36, indicating that the petition was not properly served in accordance with the Court’s rules as set out in 22 NYCRR 670.18.*

Turning to Nielsen’s Article 78 petition seeking a court order compelling Hafner to resign from his office of Fire Commissioner, the Appellate Division dismissed this branch of the action as well, explaining it did not have subject matter jurisdiction to consider the Article 78 petition filed by Nielsen.

* The rules of the Appellate Division, Second Department provide that a special proceeding pursuant to Public Officers Law §36 “shall be commenced by the filing of a petition in the office of the clerk … pursuant to CPLR 304. Service of the petition with a notice of petition or order to show cause shall be made in accordance with CPLR 306-b on at least 20 days' notice to the respondent.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01555.htm

Employer’s rejection of an individual’s claim for GML §207-c disability benefits does not necessarily bar his or her becoming eligible for such benefits at a later date

Employer’s rejection of an individual’s claim for GML §207-c disability benefits does not necessarily bar his or her becoming eligible for such benefits at a later date

Zembiec v County of Monroe, 2013 NY Slip Op 01736, Appellate Division, Fourth Department

A Monroe County Sheriff's Department (MCSD) employee challenged the Department’s decision that he was not entitled to General Municipal Law §207-c benefits available to law enforcement personnel injured in the line of duty.

Supreme Court concluded that the MCSD’s determination was arbitrary and capricious and granted awarding the individual disability benefits retroactive to December 4, 2009, the date of the employee's request for those benefits. The Appellate Division affirmed the Supreme Court’s ruling.

The court took note of an earlier action involving the same parties [see Zembiec v County of Monroe [Appeal No. 2], 87 AD3d 1358] in which the employee sought disability benefits for the period August 12, 2008 through June 15, 2009 as well as his regular pay from June 15, 2009 through March 25, 2010. The Appellate Division denied that part of the employee’s petition seeking an award of regular pay from June 15, 2009 through March 25, 2010, explaining that the employee was required to report to a modified duty assignment on June 15, 2009, but did not do so

Among the arguments advanced by MCSD was that the employee’s claim in this proceeding was precluded by the doctrine of res judicata.* The Appellate Division rejected this claim, stating that the employees current claim for benefits was based on a December 2, 2009 status report prepared by an MCSD physician, in which the physician determined that he was not fit to return to work. The court explained that the employee’s introduction of this status report in the prior proceeding did not establish the claims being asserted in this proceeding and in the prior proceeding arose out of the same transaction or series of transactions.

Although the proceedings both involve claims concerning the employee's entitlement to disability benefits and are arguably related in time inasmuch as certain events relevant to this appeal, i.e., the issuance of the status report and petitioner's second request for disability benefits, occurred while the prior proceeding was pending, the proceedings are based upon two different transactions — MCSD’s June 15, 2009 decision denying the §207-c benefits and its July 19, 2010 decision denying the §207-c benefits being sought by the employee.

In the prior proceeding the court was concerned only with the issue whether MCSD’s June 15, 2009 determination was "arbitrary and capricious" and the court's "review of [the] administrative determination [in the prior proceeding was] limited to the facts and record adduced before the agency.'" Thus the court could not rely on post-determination submissions, such as the December 2, 2009 status report, in evaluating MCSD’s determination.

The Appellate also rejected MCSD’s alternative argument that the Doctrine of Collateral Estoppel** bared the employee’s instant claim, concluding that the issues concerning employee's ability to return to work and his eligibility for disability benefits in December 2009 had not been decided in the prior proceeding. The court explained that although it determined that Supreme Court erred in awarding the employee regular pay from June 15, 2009 through March 25, 2010, in the earlier proceeding, that determination had not foreclosed the possibility that employee might, at some point after June 15, 2009, again become eligible for disability benefits

* Res Judicata: Latin for a matter already decided or judged by a tribunal.

** The Doctrine of Collateral Estoppel bars issues that have been litigated from being litigated again by the same parties.

The instant decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01736.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

Health Care Reform Webinar for Public Employers Now Available Online

Health Care Reform Webinar for Public Employers Now Available Online
 
The NYMUNIBLOG Editorial Team has posted the Harris Beach webinar, “Health Care Reform’s Impact on Public Entities: Don’t Get Caught Waiting for 2014 – What You Need to be Doing Now,” on the Internet. 

It is is now available for downloading and streaming for those unable to attend on March 14, 2013 presentation at http://nymuniblog.com/?p=3120

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending March 17, 2013 [Click on the caption to access the full report]

DiNapoli: General Electric Agrees to Examine Risks from New PCB Hotspots in Hudson

General Electric Corp. has agreed to prepare an analysis of the actions required to remove recently discovered polychlorinated biphenyl contamination contaminated sediments from the Hudson River and report its findings to shareholders, New York State Comptroller Thomas P. DiNapoli announced Monday. The analysis will be completed by the end of 2013. In response to the agreement, DiNapoli withdrew a shareholder resolution calling on the company to do such an evaluation.

DiNapoli and Saratoga DA Murphy: Former Fire District Treasurer Pleads Guilty to Stealing Taxpayer Funds

The former treasurer of the Charlton Fire District has admitted to embezzling $500,000 in public funds as the result of an audit and investigation by State Comptroller Thomas P. DiNapoli and further investigation by Saratoga County District Attorney James A. Murphy, III and the New York State Police.

DiNapoli: Challenges Remain For New York City Budget

New York City’s budget is balanced in the current fiscal year and Mayor Bloomberg has presented a balanced preliminary budget for fiscal year 2014, but a number of issues pose significant budget risks in the years ahead, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Nassau County Needs to Improve Contract Process

While Nassau County is following established guidelines for approving contracts, the authorization process often misses approval deadlines, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. Auditors found that because of the lengthy review process vendors began working on half the contracts an average of seven weeks prior to the contract being signed by the county.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed audits of

the Town of Columbus;

the Town of Hamlin;

the Village of Lyndonville;

the Town of Mansfield;

the Town of Otselic; and,

the Town of Pittstown.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed audits of:

the Niskayuna Central School District;

the Patchogue–Medford Union Free School District;

the Pine Bush Central School District; and,

the South Glens Falls Central School District.

New York State Comptroller Thomas P. DiNapoli’s audit of Mill Neck Manor reports the facility overcharged the State more than $280,000

New York State Comptroller Thomas P. DiNapoli’s audit of Mill Neck Manor reports the facility overcharged the State more than $280,000

An audit report released by New York State Comptroller Thomas P. DiNapoli on March 14, 2013 reports that the Mill Neck Manor School for the Deaf, a Nassau County provider of special education services for children with hearing disabilities, overcharged the State Department of Education* [SDE] more than $280,000, including charges for extra salary and benefits for the school’s Executive Director.

Mill Neck, part of the larger Mill Neck Family of Organizations, claimed $64,817 from the State for salary paid to its Executive Director, Mark Prowatzke, that should have come from elsewhere in the organization.  Auditors also identified $7,688 in vacation costs that were claimed for reimbursement, but were not paid by the school to its employees.

DiNapoli recommendations included that:

 
1. SDE review the inappropriate and unsupported expenses and take action to recover such reimbursed expenses; and

2. Mill Neck School should not charge costs to the program that are not in compliance with the State Education Department’s Reimbursable Cost Manual (Manual).

3. Explain Manual requirements to staff involved in preparing the Consolidated Fiscal Reports and the cost reimbursement processes.

A copy of the audit report is posted on the Internet at:
http://www.osc.state.ny.us/audits/allaudits/093013/11s40.pdf

DiNapoli has identified other fraud and improper use of funds in a recent series of audits of special education providers. There have been several criminal referrals, felony arrests, criminal convictions and hundreds of thousands of dollars in restitution made as a result of the audits. In total, 30 special education contractors have been or are being audited.

The Comptroller's recent audit of SED’s fiscal and program oversight of special education providers found that the agency has not conducted any on-site provider audits since 2007. A summary of key findings in this audit report, which was issued on December 18, 2012, is posted on the Internet at:http://osc.state.ny.us/audits/allaudits/093013/12s103.htm. The link to the full text of the December 2012 audit report, which is posted on the Internet, is: Link to full audit report (2012-S-103)

* SDE oversees special education programs for students with disabilities between the ages of 3 and 21. In addition to services provided by local school districts, these programs include services delivered to about 75,000 students by more than 300 for-profit and not-for-profit entities at an annual state cost of $1.3 billion.

Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties

Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties

Cribbin v New York State Unified Ct. Sys., 2013 NY Slip Op 01548, Appellate Division, Second Department

Patrick Cribbin file an Article 78 petition seeking an order compelling the Chief Administrative Judge of the Courts of the State of New York to reclassify an certain New York State Court Officer-Major I (Judicial Grade-26) employees to the title of New York State Court Officer-Major II (Judicial Grade-28).

The Appellate Division reversed a Supreme Court ruling that granted the petition [as amended] and remitted the matter to the Chief Administrative Judge of the Courts of the State of New York for further proceedings.

The court said that when a position classification decision is made "[t]he courts have the power to reverse or modify a particular classification . . . [only] if it is wholly arbitrary or without any rational basis," citing Association of Secretaries to Justices of Supreme and Surrogate's Courts in the City of New York. v Office of Court Administration of the State of New York., 75 NY2d 460 and other decisions.

The Appellate Division explained that “So long as the classification determination has a rational basis, a court may not disturb it even if there are legitimate grounds for a difference of opinion.” 

As the record established a rational basis for the distinction between the positions of  Major I and Major II, even though there was some overlap in duties, the court concluded  that the additional managerial duties assigned incumbents of Major II positions provided a rational basis for distinguishing between the two positions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01548.htm

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The Appellate Division affirmed a Supreme Court’s denial of an Article 78 petition seeking to annul the determination of Waterfront Commission of New York.

Among the addressed by the Appellate Division concerning the admission of hearsay statements in the course of the proceeding and petitioner’s inability to cross-examine a witness alleged to have made statements to the detriment of the petitioner.

As to the issue concerning hearsay evidence, the Appellate Division ruled that “The admission of hearsay statements at the administrative hearing did not violate petitioner's due process rights to a fair hearing or cross-examination.” The court explained that “It is well established that ‘[h]earsay evidence can be the basis of an administrative determination,’" citing Gray v Adduci, 73 NY2d 741.

The court also noted that in addition to the challenged hearsay testimony, the Commission presented testimony that corroborated the hearsay testimony.

With respect to the issue concerning the petitioner’s inability to cross-examine an individual who made statements implicating him because the individual ignored a subpoena issued by the Administrative Law Judge, the Appellate Division said that this did not require a different result. In the words of the court: “The fact that the subpoena may have been ignored was not the fault of [Commission] or the [Administrative Law Judge…” as the target of the subpoena was incarcerated at the time.

The court noted that the petitioner was able to cross-examine the live witnesses, and good cause was established for the failure to produce the subpoenaed witness at the hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01496.htm

A town council member may not simultaneously serve as the town's financial operations manager

A town council member may not simultaneously serve as the town's financial operations manager

Informal Opinions of the Attorney General 2013-01

A town asked for the Attorney General’s opinion as to whether the positions of town council member and town financial operations manager or, alternatively, director of finance, can be held by the same person.

The Attorney General concluded that such positions may not be held by the same individual, explaining that  because of the town board's responsibility to oversee the Town's fiscal operations, a council member should not simultaneously hold the position of financial operations manager or director of finance.

The opinion notes that the Attorney General has repeatedly expressed the view that one person cannot serve as both a member of a local government's governing body and in a subordinate second position for the same local government.

The fundamental concept regarding such incompatibility: one person cannot be both the supervisor and the supervised [see People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874)]

The Informal Opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-1_pw.pdf